Maternity matters: Q&A

Q Is it correct that employees still need 26 weeks’ service to qualify for adoption leave, but not for additional maternity leave?


A Yes. An employee with an expected week of childbirth on or after 1 April 2007 will qualify for both ordinary maternity leave (OML) and additional maternity leave (AML) regardless of her length of service. To qualify for adoption leave, however, an employee must have been continuously employed by the same employer for 26 weeks by the end of the week in which they are notified of having been matched with a child for adoption.


Q Given that the maternity pay period has increased to 39 weeks, are employees entitled to all their contract terms and conditions, other than pay, for 39 weeks?


A No. Despite the extension of the maternity pay period to 39 weeks for employees with an expected week of childbirth on or after 1 April 2007, the distinctions between OML and AML remain. Therefore, an employee will continue to be entitled to her contractual benefits (excluding pay), such as gym membership and use of a company car, during her 26 weeks of OML, but not during AML (although some employers continue to offer them for simplicity).


Q If an employee with an expected week of childbirth on or after 1 April 2007 wants to return to work at the end of her OML does she have to notify her employer?


A Yes. An employer will usually expect an employee to return to work on the first working day after her AML finishes, ie 52 weeks after her maternity leave began. If an employee wishes to return to work at the end of her OML, or at any time before the end of her AML, she must give her employer eight weeks’ notice of the new return date. This is an extension from the previous 28-day notice requirement and is designed to allow both parties to plan more effectively for the employee’s return to work.


If an employee returns to work early without giving her employer eight weeks’ notice, the employer can postpone her return for eight weeks or until the date on which she was due to return, whichever occurs sooner.


Q Where an employee’s expected week of childbirth is on or after 1 April 2007, will her statutory maternity pay still start on the Sunday after she begins her maternity leave?


A Statutory maternity pay (SMP) is paid weekly and, for employees with an expected week of childbirth on or after 1 April 2007, it can start on any day of the week.


Q Does the extension of SMP to 39 weeks affect an employee’s entitlement to pension contributions?


A While an employee is receiving SMP and/or contractual maternity pay, the employer’s pension contribution should be calculated as if the employee were working and receiving her normal salary. The extension of SMP to 39 weeks therefore affects an employee’s entitlement to pension contributions, in that she will benefit from full employer pension contributions for the extended period.


If the employee belongs to a final salary pension scheme, she will be entitled to continue to accrue pensionable service as normal during her paid maternity leave. The employer’s contributions should, therefore, continue at the normal rate.


Where the employee is required to make contributions, she need only make payments calculated by reference to her rate of contractual maternity pay or SMP the employer will need to make up the shortfall to ensure that the scheme remains appropriately funded.


If the employee belongs to a money purchase scheme, during her paid maternity leave the employer must continue to make contributions based on her normal rate of pay, rather than on her contractual maternity pay rate or SMP. The employee is obliged only to make contributions calculated by reference to her contractual maternity pay rate or SMP.


These contributions will usually be lower than those calculated by reference to her normal salary – it is unclear whether or not the employer will be required to make up the shortfall. Many employers take the view that they will not do so. Employers are not required to treat unpaid AML as pensionable service in a final salary scheme or to continue to make contributions to a money purchase scheme during this time. However, pensionable service before and after unpaid AML must be treated as continuous the employee must not be held to have left and rejoined the scheme.


Q Are there plans to extend maternity pay to 52 weeks?


A The government intends to extend maternity pay to 52 weeks before the end of this Parliament, anticipated to be in 2009-10.


Caroline Blackwood is know-how associate and Carys Wilson is a trainee at Osborne Clarke


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